Plan by Vermont Transportation would reset Act 250 imbalance

Since its implementation in 1970, Act 250 has often left the last developer on the block to float the entire cost of any necessary upgrades to the area in which they are working.

To combat this imbalance, VTrans has started to explore a “fair share” mechanism for imposing mitigation contributions relative to the actual impacts of a development. Mark Hall, an attorney at Burlington-based law firm Paul Frank and Collins with a special concentration in land use, environmental, real estate and construction law, says that if a definitive change reflecting this fair share mechanism is made to Act 250 “it will be a public-private win-win as the developer will pay for its own impacts, while knowing its funds will be utilized locally.”

When a large commercial client announced that they planned to make a relatively minor adjustment to their existing location in Colchester, local and state governments saw this as a prime time to explore the fair share payment model on a large scale.

Ron Shems, Vermont’s Natural Resources Board chairman, said, “Discussion and involvement with Act 250 has been going on since before Hurricane Irene in 2011. We do have a stakeholding process going and hope to propose legislation for this coming session.”

While nothing has been finalized legislatively, the situation in Colchester holds the potential to be one of the most substantial enactments of the fair share mechanism to date and could lead to major modifications to Act 250.

The area in question, exit 16 on I-89 in Colchester, has been a source of disdain for years.

Constructed in the early 1960s, commercial growth in the area has left the busy interchange obsolete and it is often congested as a result of its inability to accommodate the amount of traffic it sees on a daily basis. Unfortunately, the deficiencies, such as the current width of the overpass, are not amenable to a cheap fix.

Estimated at more than $5.1 million, updating Exit 16 would involve demolishing the current interchange and replacing it with a “diverging double diamond” design. Hall says that in the past, “developers have understandably chaffed at the notion of paying for infrastructure overtaxed by noncontributing, pre-existing development.”

The solution proposed, which involves spreading the cost of the project across private developers, using a balanced, impact-based method of assessing costs for the necessary improvements holds promise as a rational fix to a long-lasting problem. If finally approved in the permitting process, the mechanism could signal a significant shift in policy for future developments.

Rajinish Gupta, a traffic research engineer at VTrans who worked on the mechanism, said that “the shift has not happened yet. There’s no standard formula defined right now and it goes by a case-to-case basis. It’s a work in progress.”

The former precedent of having the last one in pay for deficient infrastructure overtaxed by noncontributing, pre-existing development often dissuaded companies from embarking on new projects.

If the fair share model is implemented, developers will be more likely to move forward with their plans, expanding pre-developed areas and boosting local economies.

Shems added, “We want to look at things from a smart growth and equitable position. Part of smart growth is better development in already developed areas and part of that is tackling the traffic issues that result from that development...”